OSHA Extends Comment Period for ETS to Enforce Vaccine-or-Test Mandate

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has extended the comment period for its Emergency Temporary Standard (ETS) to enforce President Joe Biden’s vaccine/testing mandate for private employers with 100 or more employees. Initially set for December 6, 2021, the deadline for comments is now January 19, 2022.

OSHA said it wanted to give various stakeholders more time to review the ETS and collect data and information necessary to comment on the new standard, which impacts 1.9 million private-sector employers and more than 84 million workers. 

ETS Deadlines

The ETS, which was passed on November 5, 2021, provides a framework for employers to either implement and enforce a policy that requires employees to receive COVID-19 vaccinations or a policy that allows employees to choose between vaccination and regular COVID-19 testing and mask wearing. 

The OSHA rule requires that covered employers ensure all workers are either vaccinated or tested weekly by January 4, 2022. The deadline to comply with certain pieces of the ETS, including collecting information on employee vaccination status, requiring that unvaccinated workers wear masks, and choosing whether the policy will require vaccinations or provide a testing option, is December 5, 2021. More information on what the ETS entails can be found here.

Litigation Pending

The fate of the ETS, however, is less than certain. Shortly after it was announced, several states, businesses and trade organizations challenged the rule in court. The 5th Circuit Court of Appeals in New Orleans issued a stay blocking the ETS on November 12. Lawsuits across the country have since been transferred to the 6th Circuit Court of Appeals in Cincinnati. On November 23, the Biden administration filed an emergency motion seeking to lift the stay. The court is expected to consider this motion by the middle of December. 

Next Steps for Employers

Meanwhile, covered employers are in the difficult position of determining how much preparation to take to comply with the ETS’s requirements. 

OSHA was ordered by the court to “take no steps to implement or enforce” the ETS until further court order, and the agency announced that it has, in fact, suspended activities related to the implementation and enforcement of the ETS pending future developments in litigation. However, OSHA stated that it “remains confident in its authority to protect workers in emergencies.”

Employers who choose to take a wait-and-see approach should keep in mind that if the court gives the ETS the go-ahead, that completing the tasks needed to be in compliance with the rule will take several weeks. Employers should keep apprised of the status of the court cases and have a plan in place to be ready to quickly comply should the ETS survive its legal challenges.

If you have questions about the ETS or general OSHA compliance, or if you are looking to contest an OSHA citation or prepare for the OSHA inspection process, give us a call. The OSHA lawyers at Sheehy Ware and Pappas have deep expertise in OSHA matters ranging from compliance to OSHA lawsuits.